While all eyes have rightfully been focused on Washington, D.C., during the recent and ongoing drama surrounding the government shutdown, in Madison, the Wisconsin Legislature is poised to take action on two measures that may have a significant impact on Wisconsin employers. In the first bill, the Wisconsin Legislature seeks to prohibit local governments from enacting or enforcing certain employment regulations at the local level. If passed, this bill could summarily put an end to the Madison Equal Opportunity Ordinance. In the second bill, the Wisconsin Legislature would exempt from the Wisconsin Family and Medical Leave Act (WFMLA) any employer that is also covered by the federal Family and Medical Leave Act (FMLA). These significant proposals are in keeping with other employer initiatives enacted during Governor Walker’s tenure.

The Employment Law Standardization Act

Introduced by Wisconsin State Senator Chris Kapenga, the Employment Law Standardization Act would preempt local governments from enacting or enforcing ordinances related to various employment matters. More specifically, the Act would prohibit any city, village, town, or county from enacting or enforcing an ordinance regarding any of the following matters:

Employment discrimination

Wage claims and collections

Employee hours and overtime, including scheduling of employee work hours and shifts

The employment benefits an employer may be required to provide to its employees

An employer’s right to solicit information regarding the salary history of prospective employees

The Act would also prohibit any of those political subdivisions from imposing on individuals occupational licensing requirements that are more stringent than is required by any state law. Finally, the Act would prohibit so-called labor peace agreements, which municipalities may use to force employers to relinquish their rights regarding union organizing granted under the National Labor Relations Act. Under such labor peace agreements, if employers do not agree to certain demands, they risk not receiving the necessary permits, approvals, or licenses to operate. The Act would bar local units of government and the state from mandating this practice, while still allowing willing parties to utilize it.

Proponents of the legislation argue that the types of local ordinances prohibited by the Act are best governed by uniform statewide policies. They also argue that the Act guarantees uniform employment regulation of employment hours, overtime, benefits, discrimination, and wage claims, as well as prevents employers from being caught in the regulatory spiderweb of nearly 2,000 local governments. Opponents of the legislation argue that the legislation will restrict the ability of local governments to improve the economic security and working conditions of workers in their communities.

If enacted, one of the more significant consequences could be elimination of the Madison Equal Opportunity Ordinance, which has its own enforcement mechanism and contains a number of protected classes not covered under Wisconsin law. The protected classes that would be eliminated in Madison would include gender identity, non-religion, homelessness, sources of income, lack of Social Security number, physical appearance, political belief, student status, domestic partner status, citizenship, unemployment status, and credit history. In addition, the Act would prohibit future promulgation of local ordinances similar to those that have been enacted across the country, including those that restrict or regulate hours of work, set higher minimum wages, and prohibit inquiries regarding salary history. The recently enacted DePere, Wisconsin, nondiscrimination ordinance would also likely be eliminated.

Family Medical Leave Reform

Under the second piece of legislation, the Wisconsin Legislature would exempt from the WFMLA those employers covered by the federal FMLA. Similar to the Employment Law Stabilization Act, the intent of this bill is to streamline regulations for employers covered by both state and federal law. The bill provides that the WFMLA would not apply to any of the following:

“An employer that is required to provide leave under the federal family and medical leave law.

An employer that opts to provide leave under the federal family and medical leave law to an employee who is not an eligible employee, so long as the employer provides leave to such an employee in the same manner as the employer provides to an eligible employee.”

The bill would not prohibit an employee who is eligible for federal FMLA leave from taking that leave entitlement to care for a spouse, child, parent, domestic partner, or parent-in-law who has a serious health condition as defined by the WFMLA. However, if enacted, the bill would presumably exempt covered employers from other specific provisions of the WFMLA that are not required under federal law. For example, the WFMLA provides that only an employee gets to choose if he or she will substitute accrued paid or unpaid leave of any type provided by an employer during the period of statutory leave, whereas federal law allows employers to require such substitution. Moreover, the bill would presumably limit the types of employer-provided paid leave an employee could choose to substitute—a choice that has otherwise been construed broadly by Wisconsin court decisions. In addition, the Act would ease the administrative burdens on employers in tracking the use of both state and federal leave on a calendar year and rolling year basis.

Key Takeaways

Both pieces of legislation are being considered in the current legislative session. Given that Republicans control both chambers of the Wisconsin Legislature, as well as the governorship, and based on similar legislation previously passed under Governor Walker, passage of both bills seems likely. We will continue to monitor and update the status of both of these pieces of legislation and their effects on Wisconsin employers.

Christopher Johnson is a shareholder in the Milwaukee office of Ogletree Deakins. For more than 25 years, Mr. Johnson has represented and counseled employers in all aspects of labor and employment law, including employment discrimination, restrictive covenant and non-compete litigation, employer best practices, family and medical leave issues, workplace safety, and wage and hour disputes.

Mr. Johnson has extensive litigation experience in all forums, from state and federal courts to administrative agencies and labor arbitrations. He has...

Keith strives to find creative and cost-effective solutions to some of the most vexing workplace issues, including Family and Medical Leave Act abuse, incidents of off-the-clock work, and reasonable accommodation requests. He has given presentations on numerous topics, including the use of social media by employees, Wisconsin’s concealed carry law, employee handbooks, workplace violence, employee privacy, the hiring process, the Wisconsin and federal Family and Medical Leave Acts, discipline and discharge, and unemployment insurance. Keith also presents customized training programs for employers.

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558 Telephone (708) 357-3317 If you would ike to contact us via email please click here.